Senate Bill No. 519
(By Senators Wooton, Ball, Dawson, Dittmar, Fanning, Hunter, Kessler,
McCabe, Minard, Mitchell, Redd, Ross, Snyder, Deem and McKenzie)
[Passed March 11, 2000; in effect ninety days from passage.]
AN ACT to amend article eleven, chapter sixty-one of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
twenty-five, relating to expungement of criminal records where
a person is acquitted or where charges are dismissed.
Be it enacted by the Legislature of West Virginia:
That article eleven, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section twenty-
five, to read as follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-25. Expungement of criminal records for those found not
guilty of crimes or against whom charges have been dismissed.
(a) Any person who has been charged with a criminal offense under the laws of this state and who has been found not guilty of
the offense, or against whom charges have been dismissed, and not
in exchange for a guilty plea to another offense, may make a motion
in the circuit court in which the charges were filed to expunge all
records relating to the arrest, charge or other matters arising out
of the arrest or charge: Provided, That any person who has
previously been convicted of a felony may not make a motion for
expungement pursuant to this section. The term records as used in
this section includes, but is not limited to, arrest records,
fingerprints, photographs, index references or other data whether
in documentary or electronic form, relating to the arrest, charge
or other matters arising out of the arrest or charge. Criminal
investigation reports and all records relating to offenses subject
to the provisions of article twelve, chapter fifteen of this code
because the person was found not guilty by reason of mental
illness, mental retardation or addiction are exempt from the
provisions of this section.
(b) The expungement motion shall be filed not sooner than
sixty days following the order of acquittal or dismissal by the
court. Any court entering an order of acquittal or dismissal shall
inform the person who has been found not guilty or against whom
charges have been dismissed of his or her rights to make a motion for expungement pursuant to this section.
(c) Following the filing of the motion, the court may set a
date for a hearing. If the court does so, it shall notify the
prosecuting attorney and the arresting agency of the motion and
provide an opportunity for a response to the expungement motion.
(d) If the court finds that there are no current charges or
proceedings pending relating to the matter for which the
expungement is sought, the court may grant the motion and order the
sealing of all records in the custody of the court and expungement
of any records in the custody of any other agency or official
including law-enforcement records. Every agency with records
relating to the arrest, charge or other matters arising out of the
arrest or charge, that is ordered to expunge records, shall certify
to the court within sixty days of the entry of the expungement
order, that the required expungement has been completed. All
orders enforcing the expungement procedure shall also be sealed.
(e) Upon expungement, the proceedings in the matter shall be
deemed never to have occurred. The court and other agencies shall
reply to any inquiry that no record exists on the matter. The
person whose record is expunged shall not have to disclose the fact
of the record or any matter relating thereto on an application for
employment, credit or other type of application.
(f) Inspection of the sealed records in the court's possession
may thereafter be permitted by the court only upon a motion by the
person who is the subject of the records or upon a petition filed
by a prosecuting attorney that inspection and possible use of the
records in question are necessary to the investigation or
prosecution of a crime in this state or another jurisdiction. If
the court finds that the interests of justice will be served by
granting the petition, it may be granted.